Constitutional Review and Dissenting Opinions in Nondemocracies: An Empirical Analysis of the Russian Constitutional Court, 1998-2018

When it comes to elections (H 6), the number of issued dissenting opinions is higher, but the estimated amount by which log odds of declaring an act as unconstitutional increases. This result contradicts my hypothesis (H 6), which states that the RCC will be less likely to strike down electoral laws because courts are needed by the ruler to punish or neutralize political opponents. Besides the RCC, there is the Supreme Court of Russia, which considers cases outside of constitutional review, including many electoral disputes, and I would argue that it is the Supreme Court that primarily deals with neutralizing political opposition, while the RCC hears cases submitted not only by the opposition, but also from other actors as well-thus, I need to redefine this category and distinguish between these types more clearly in future research.

Another large category that I expect to influence dissenting rates and outcomes of cases is social welfare. Just as predicted (H 3), the RCC is more likely to declare an act as unconstitutional if it is about social welfare. This category includes a broad range of issues from pension, labor standards, social and housing benefits to military and law enforcement officers, people with children, Chernobyl victims, and veterans of WWII; I ran models with these subcategories separately but found no significant results, mostly because of the small sample (whole social welfare category contains 72 cases out of 502). When a case is about social welfare, there are fewer dissenting opinions, mostly because (presumably) the RCC already decides “in favor” of the petitioner, and there is a consensus between judges on social issues.

Finally, as predicted, the RCC will stay away from politically salient cases or those involving the government. When the case is about the division of responsibilities and disputes between different levels of the government-federal vs. regional and executive vs. legislature-the RCC is less likely to declare an act as unconstitutional (H 2). However, this is exactly the type of case that shows the differences between collective (at the court level) and individual (at the judge level) decision making-when cases are about the structure of the government, individual judges are more likely to issue dissenting opinions.

Table 5

Regression Results for the Categories of Legal Act under Consideration

Table 5.

Note: *p < 0.1; **p < 0.05; ***p < 0.01; standard errors in parentheses.

Conclusion

court nondemocratic regime russian

How do CCs operate under nondemocratic regimes, where a developed rule of law and independent judiciary are absent? Given that the higher courts in such settings also have to be tolerated by an autocrat, what is their strategy in decision making? Do judges voice their disagreement publicly via authoring dissenting opinions, and when does this happen?

The current paper provides answers to these questions based on the empirical analysis of the RCC's case law. Using a novel database of the RCC's final judgments and dissenting opinions (1998-2018), I show that it is who petitions the court and on which topics that influences the outcomes of cases and dissenting opinions.

First, the political regime and institutional settings matter for the RCC. Following the common assumption that courts in nondemocracies exist as long as they benefit the ruler and rarely rule against the government, we find that it this indeed the case in Russia. Cases about the structure of the government have the lowest (but significant) probabilities of being nullified while also having the highest probabilities of having a dissenting opinion authored by one of the judges. Additionally, judges dissent more when cases are brought by high-level political actors, such as federal parliament or the government. Even in today's Russia, judges author dissenting opinions, hence investing their time and intellectual resources, but also risking job promotions or tenure; they do this in potentially salient issues related to the federal government.

Second, after the constitutional crisis in 1993, the RCC began to focus more on social rights. There seems to be a consensus of advancing social rights and striking down laws that narrow them down or violate the constitutional principles of social rights and benefits. Empirically, we can see it in higher probabilities of laws being declared unconstitutional when citizens petition the court, as well as when applications are about social welfare. Additionally, the only significant and stable results for not issuing a dissenting opinion are social welfare, which shows that judges more or less agree with each other in these cases.

Next, the RCC is more likely to strike down laws connected to economics or business activities or when the case is petitioned by commercial companies. This is in line with previous findings on courts in authoritarian regimes being concerned with foreign trade and investment and wanting to signal them that property rights will be respected and contracts enforced [Moustafa 2009].

Next, cases questioning the constitutionality of electoral legislation are more likely to be found unconstitutional but are also more likely to have several dissenting opinions. Going back to the fact that courts in nondemocracies are used to sidelining political opponents, this result seems surprising. However, this can be explained by the fact that the RCC resolves electoral disputes, because nondemocratic rulers prefer to solve disputes with the opposition by legal measures with courts of ordinary jurisdiction, especially by considering such cases in another higher court, the Supreme Court of Russia.

As for limitations, the current paper is based on the data collected by the author, and extending the sample to the cases heard before 1998 would provide additional insights into how the court evolved over time. Additionally, it is naive to assume that only these factors influence the cases' outcomes, and it is specifically not true in nondemocracies, where other actors come into play. However, it is almost impossible to track quasi-judicial or political factors that impact the RCC's decision making, and this is why I have opted to completely exclude these factors from the analysis. Future research could focus on adding year-level data on public trust to the judiciary and indexes of the rule of law or democracy, as well as exploring the judges' backgrounds and their previous occupation (academia, law enforcement, courts, and others) to get a better idea of what motivates judges to issue dissenting opinions.

References

Allmark L. (2012) More than Rubber-Stamps: The Consequences Produced by Legislatures in Non-Demo- cratic States beyond Latent Legitimation. Journal of Legislative Studies, vol. 18, no 2, pp. 184-202.

Alter K. (2011) The Evolving International Judiciary. Annual Review of Law and Social Science, vol. 7, pp.387-415.

Amaral-Garcia S., Garoupa N., Veronica N. (2009) Judicial Independence and Party Politics in the Kelsenian Constitutional Courts: The Case of Portugal. Journal of Empirical Legal Studies, vol. 6, no 2, pp. 381404.

Anagnostou D. (2010) Does European Human Rights Law Matter? Implementation and Domestic Impact of Strasbourg Court Judgments on Minority-Related Policies. International Journal of Human Rights, vol. 14, no 5, pp. 721-743.

Borocz J. (2000) Informality Rules. East European Politics & Societies, vol. 14, no 2, pp. 348-380.

Brown N., Waller J. (2016) Constitutional Courts and Political Uncertainty: Constitutional Ruptures and the Rule of Judges. International Journal of Constitutional Law, vol. 14, no 4, pp. 817-850.

Brownlee J. (2007) Authoritarianism in the Age of Democratization, Cambridge: Cambridge University Press.

Burbank J. (2004) Russian Peasants Go to Court: Legal Culture in the Countryside, 1905-1917, Bloomington, Indianapolis: Indiana University Press.

Burkhardt F. (2017) The Institutionalization of Relative Advantage: Formal Institutions, Subconstitutional Presidential Powers, and the Rise of Authoritarian Politics in Russia, 1994-2012. Post-Soviet Affairs, vol. 33, no 6, pp. 472-495.

Burns J. (2010) Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court, London: Penguin Books.

Chandler A. (2014) Citizenship, Social Rights and Judicial Review in Regime Transition: The Case of Russia. Democratization, vol. 21, no 4, pp. 743-766.

Clarke S. (1995) Management and Industry in Russia: Formal and Informal Relations in the Period of Transition, Cheltenham: Edward Elgar Publishing Limited.

Conant L. (2002) Justice Contained: Law and Politics in the European Union, Ithaca: Cornell University Press.

Danelski D. (1986) Causes and Consequences of Conflict and its Resolution in the Supreme Court. Judicial Conflict and Consensus: Behavioral Studies of American Appellate Courts (eds. C. Lamb, S. Goldman), Lexington: University of Kentucky Press, pp. 21-49.

Dzmitryieva A. (2017) Case Selection in the Russian Constitutional Court: The Role of Legal Assistants. Laws, vol. 6, no 4, pp. 1-23.

Easter G. (2000) Reconstructing the State: Personal Networks and Elite Identity in Soviet Russia (Cambridge Studies in Comparative Politics), Cambridge: Cambridge University Press. doi: 10.1017/ CBO9780511571527

Epp C. (1998) The Rights Revolution: Lawyers, Activists and Supreme Court in Comparative Perspective, Chicago: University of Chicago Press.

Epstein L., Knight L. (1998) The Choices Justices Make, Washington DC: CQ Press.

Epstein L., Landes W., Posner R. (2011) Why (and When) Judges Dissent: A Theoretical and Empirical Analysis. Journal of Legal Analysis, vol. 3, no 1, pp. 101-137.

Feifer G. (1964) Justice in Moscow, New York: Simon and Schuster.

Frye T. (2017) Property Rights and Property Wrongs: How Power, Institutions and Norm Shape Economic Conflict in Russia, Cambridge: Cambridge University Press.

Gallo D., Winkler M. (2017) The Construction of Same-Sex Families in Western Europe through Legislative and Judicial Dialogues. The Role of National Legislatures and Supranational Courts. Judicial Dialogue and Human Rights (eds. Mьller A., Kjos H. E.), Cambridge: Cambridge University Press. pp. 216-250.

Garoupa N., Gomez-Pomar F., Grembi F. (2011) Judging Under Political Pressure: An Empirical Analysis of Constitutional Review Voting in the Spanish Constitutional Court. Journal of Law, Economics and Organization, vol. 29, no 3, pp. 513-534.

Ginsburg T. (2012) Courts and New Democracies: Recent Works. Law and Social Inquiry, vol. 37, no 3, pp.720-742.

Gorlizki Y. (1997) Political Reform and Local Party Interventions Under Khrushchev. Reforming Justice in Russia: Power, Culture, and the Limits of Legal Order (ed. P. H. Solomon, Jr.), Armonk, N. Y : ME Sharpe, pp. 256-281.

Grigoriev I. (2017) Transformatsia institutov sudebnoy vlasti v protsesse konsolidatsii gybridnogo polit- icheskogo reghima (na primere rossiskogo Konstitutsionnogo suda) [Transformations of the Judiciary in the Process of Consolidation of the Hybrid Political Regime (Case Study of the Russian Constitutional Court)] (PhD thesis), Saint Petersburg State University (in Russian).

Grigoriev I. (2018) Why Dismiss a Good Case? Dual-Purpose Judicial Institutions in Constitutional Courts Under Autocracy: Evidence from Russia. Higher School of Economics Research Paper No. WP BRP 60/ PS/2018, Moscow: HSE Publishing House.

Hafner-Burton E. (2013) Making Human Rights a Reality, Princeton: Princeton University Press.

Helmke G. (2002) The Logic of Strategic Defection: Court-executive Relations in Argentina under Dictatorship and Democracy. American Political Science Review, vol. 96, no 2, pp. 291-303.

Helmke G., Levitsky S. (2004) Informal Institutions and Comparative Politics: A Research Agenda. Perspectives on Politics, vol. 2, no 4, pp. 725-740.

Helmke G., Rios-Figueroa J. (eds) (2011) Courts in Latin America, Cambridge: Cambridge University Press.

Hendley K. (2007) Are Russian Judges Still Soviet? Post-Soviet Affairs, vol. 23, no 3, pp. 240-274.

Hendely K. (2009) `Telephone Law' and the `Rule of Law': The Russian Case. Hague Journal on the Rule of Law, vol. 1, no 2, pp. 241-262.

Hendley K. (2015) Resisting Multiple Narratives of Law in Transition Countries: Russia and Beyond. Law & Social Inquiry, vol. 40, no 2, pp. 531-552.

Herron E., Randazzo K. (2003) The Relationship between Independence and Judicial Review in Post-Communist Courts. Journal of Politics, vol. 65, no 2, pp. 422-438.

Hicks D. (2002) The Promise(s) of Deliberative Democracy. Rhetoric & Public Affairs, vol. 5, no 2, pp. 223260.

Hilbink L. (2012) The Origins of Positive Judicial Independence. World Politics, vol. 64, no 4, pp. 587-621.

Holmes S. (2003) Lineages of the Rule of Law. Democracy and the Rule of Law (eds. J. A. Maravall, A. Prze- worski), New York: Cambridge University Press, pp. 19-61.

Hцnnige C. (2009) The Electoral Connection: How the Pivotal Judge Affects Oppositional Success at European Constitutional Courts. West European Politics, vol. 32, no 5, pp. 963-984.

Hume R. (2006) The Use of Rhetorical Sources by the U.S. Supreme Court. Law & Society Review, vol. 40, no 4, pp. 817-844.

Kelemen R. (2001) The Limits of Judicial Power: Trade-Environment Disputes in the GATT/WTO and the EU. Comparative Political Studies, vol. 34, no 6, pp. 622-650.

Kononov A. (2017) Оsoboe mnenie sudyi Kononova: Osobie mnenia sudyi Konstitutsionnogo suda Rossi- yskoy Federatsii 1992-2009 [Dissenting Opinions of the Judge Kononov: Dissenting Opinions of the Russian Constitutional Court's Judge 1992-2009], Moscow: Kuchkovo Pole (in Russian).

Ledeneva A. (1998) Russia's Economy of Favours: Blat, Networking and Informal Exchange, Cambridge: Cambridge University Press.

Ledeneva A. (2008) Telephone Justice in Russia. Post-Soviet Affairs, vol. 24, no 4, pp. 324-350.

Levitsky S., Way L. (2010) Competitive Authoritarianism: Hybrid Regimes after the Cold War, Cambridge: Cambridge University Press.

Lupu Y., Voeten E. (2012) Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights. British Journal of Political Science, vol. 42, no 2, pp. 413-439.

Madsen M., Cebulak P., Wiebusch M. (2018) Special Issue - Resistance to International Courts Introduction and Conclusion. International Journal of Law in Context, vol. 14, no 2, pp. 193-196.

Magalhдes P. (1999) The Politics of Judicial Reform in Eastern Europe. Comparative Politics, vol. 32, no 1, pp. 43-62.

Morijn J., Grabowska-Moroz B. (2019) Supporting Wojciech Sadurski in a Warsaw Courtroom. Verfassungs- blog. Available at: https://verfassungsblog.de/supporting-wojciech-sadurski-in-a-warsaw-courtroom/ (accessed 13 May 2020).

Moustafa T. (2009) The Struggle for Constitutional Power. Law, Politics, and Economic Development in Egypt, Cambridge: Cambridge University Press.

Moustafa T. (2014) Law and Courts in Authoritarian Regimes. Annual Review of Law and Social Sciences, vol. 10, pp. 281-299.

Moustafa T., Ginsburg T. (2008) Introduction: The Functions of Courts in Authoritarian Politics. Rule by Law: The Politics of Courts in Authoritarian Regimes (eds. T. Ginsburg, T. Moustafa), Cambridge: Cambridge University Press. pp. 1-22.

Noble B. (2018) Authoritarian Amendments: Legislative Institutions as Intraexecutive Constraints in PostSoviet Russia. Comparative Political Studies, Available at: https://doi.org/10.1177/0010414018797941 (accessed 13 May 2020).

Paneyakh E., Rosenberg D. (2018) The Courts, Law Enforcement, and Politics in Russia. The New Autocracy: Information, Politics and Policy in Putin's Russia (ed. D. Treisman), Washington: Brookings Institution Press, pp. 217-48.

Peerenboom R. (2002) China's Long March toward Rule of Law, Cambridge: Cambridge University Press.

Posner R. (2008) How Judges Think, Cambridge: Harvard University Press.

Pritchett C. (1948) The Roosevelt Court, New York: Macmillan.

Rios-Figueroa J., Aguilar P. (2018) Justice Institutions in Autocracies: A Framework for Analysis. Democratization, vol. 25, no 1, pp. 1-18.

Risse T., Ropp S., Sikkink K. (eds). (1999) The Power of Human Rights: International Norms and Domestic Change (Cambridge Studies in International Relations), Cambridge: Cambridge University Press. doi:10.1017/CBO9780511598777

Sakwa R. (2010) The Dual State in Russia. Post-Soviet Affairs, vol. 26, no 3, pp. 185-206.

Sakwa R. (2011) The Crisis of Russian Democracy: The Dual State, Factionalism and the Medvedev Succession, Cambridge: Cambridge University Press.

Sharlet R. (1977) Stalinism and Soviet Legal Culture. Stalinism: Essays in Historical Interpretation (ed. R. Tucker), New York: Routledge.

Shen-Bayh F. (2018) Strategies of Repression. World Politics, vol. 70, no 3, pp. 321-357.

Sievert J. (2018) The Case for Courts: Resolving Information Problems in Authoritarian Regimes. Journal of Peace Research, vol. 55, no 6, pp. 774-786.

Sternberg S. (2017) How to Forecast Constitutional Court Decisions? Legal Context and Political Context in a Machine Learning Framework (Conference paper), Available at: https://sebastiansternberg.github.io/ pdf/epsa19_sternberg_forecastingdecisions.pdf (accessed 13 May 2020).

Sternberg S., Shikano S., Sieberer U. (2016) Ideology, Law and Professional Background. Explaining Dissenting Opinions in the German Federal Constitutional Court. ECPR Conference 2016 Proceedings. ECPR General Conference Charles University in Prague, Prague, 2016, 7-10 September. Available at: https:// ecpr.eu/Events/PaperDetails.aspx?PaperID=31083&EventID=95 (accessed 12 May 2020).

Staton J., Moore W. (2011) Judicial Power in Domestic and International Politics. International Organization, vol. 65, no 3, pp. 553-587.

Stone Sweet A. (2000) Governing with Judges: Constitutional Politics in Europe, Oxford: Oxford University Press.

Szabo D. (2019) A Hungarian Judge Seeks Protection from the CJEU - Part I. Verfassungsblog. Available at: https://verfassungsblog.de/a-hungarian-judge-seeks-protection-from-the-cjeu-part-i/ (accessed 13 May 2020).

Thorson C. (2012) Politics, Judicial Review and the Russian Constitutional Court, Basingstoke: Palgrave.

Trochev A. (2008) Judging Russia: The Role of the Constitutional Court in Russian Politics 1990-2006, Cambridge: Cambridge University Press.

Trochev A. (2018) Patronal Politics, Judicial Networks and Collective Judicial Autonomy in Post-Soviet Ukraine. International Political Science Review, vol. 39, no 5, pp. 662-678.

Trochev A, Solomon P. H., Jr. (2018) Authoritarian Constitutionalism in Putin's Russia: A Pragmatic Constitutional Court in a Dual State. Communist and Post-Communist Studies, vol. 51, no 3, pp. 201-214

Vereschagin A. (2012) Osobye mnenia v Konstitutsionnom sude Rossii [Dissenting Opinions in the Russian Constitutional Court]. Kak sudiy prinimaut reshenia. Empiricheskie issledovaniya prava [How Judges Come to their Decisions. Empirical Legal Research] (ed. V Volkov), Moscow: Statut, pp. 250-256 (in Russian).

Wilson M., Woldense J. (2019) Contested or Established? A Comparison of Legislative Powers across Regimes. Democratization, vol. 26, no 4, pp. 585-605.

Размещено на Allbest.ru